ALJDEC decisions subject to certification as final

2022A-04298-CHC-ROC · Registrar of Contractors · 2022-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Teresa Lynn Humphreys,

COMPLAINANT,

RNBL, LLC

DBA: Stairs 4 Less

License No. ROC 325044,

RESPONDENT.

No. 2022A-04298-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 28, 2022

APPEARANCES: Complainant Teresa Lynn Humphreys appeared on her own behalf. Behdad Reymondo Lilabi appeared on behalf of Respondent RNBL, LLC, doing business as Stairs 4 Less. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

RNBL, LLC, doing business as Stairs 4 Less (“Respondent”), is the holder of License No. 325044 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about February 17, 2022, Teresa Lynn Humphreys (“Complainant”) contracted with Respondent for the installation of a wood staircase handrail.

On or about May 25, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator David Fagerburg. On June 27, 2022, Investigator Fagerburg conducted a Jobsite Inspection at which both parties were present. On July 6, 2022, Investigator Fagerburg issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Wednesday July 27, 2022.

Investigator Notes:

1: At this jobsite investigation both parties agree there are no plans or drawings showing the design or intended finish product for the handrail installation.

2: In reviewing the contract submitted I am able to verify there is at least 1 of the 9 minimum elements of a contract missing in violation of ARS §32-1158 (A) Minimum elements of a contract.

You are directed to remedy the following violations by the appropriate means:

Compliant Item 2: Hand Rails are crooked

Investigator’s Observation: Verified. The respondent is to correct the crooked handrail at the top of the staircase by appropriate means.

Compliant Item 3: Hand Rails already broken-breaking apart where it was pieced together with filler

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliant Item 1: Stair Railing was altered hand rails didn’t line up and so was filled with another size & type of wood and wood filler.

Investigator’s Observation: There is insufficient evidence to substantiate that the stair railing was altered as there are no plans or drawings.

All errors in original.

After the issuance of the Written Directive, Respondent provided to Complainant via email correspondence, several dates during the period of the Written Directive on which Respondent could perform the required corrective work. Respondent indicated that the work would take no longer than two to three hours and the dates provided were July 12-13, July 18-22, and July 25-26. Therefore, Respondent offered Complainant availability on nine full days during the period of the Written Directive to perform the required corrective work. Complainant responded to Respondent’s email on July 9, 2022, that she was available on July 26th after 2:00 p.m., the day prior to the expiration of the Written Directive.

On August 5, 2022, Investigator Fagerburg conducted a Compliance Inspection at which both parties were present. Investigator Fagerburg’s Compliance Jobsite Notes state the following:

Investigator Note: At this compliance jobsite inspection there were numerous workers for another contractor performing work on the second level of the home needing access up and down the stairs.

Compliance Findings:

Compliant Item 2: Hand Rails are crooked

Investigator’s Observation: The respondent corrected the crooked handrail and mid rails listed on the written directive and provided photos in an email sent July 26, 2022 at 4:51 pm. Prior to this compliance jobsite inspection the complainant sent an email on July 27, 2022 at 10:35 am, the day the directive expired, showing a photo of the area where the respondent removed a screw to correct the crooked handrail and filled a screw hole. The material used appeared to be sticky and not the type of material that would be used to fill holes. The email and photo were meant to be provided to the respondent as additional information prior to this compliance jobsite inspection but due to an oversight on behalf of the investigator, the photo was not provided until after the compliance jobsite inspection. The photo was provided to the respondent via email on August 12, 2022 at 4:10 pm. On August 5, 2022 at 1:05 pm, prior to this compliance jobsite inspection, a phone call was made to the respondent describing the image observed in the photo sent by the complainant. The respondent stated that he was not made aware of the issue by the complainant prior to the directive expiration. During this compliance jobsite inspection the complainant showed the investigator and respondent a screw hole partially filled with a soft, sticky unknown material. The respondent acknowledged that a screw was removed to make the adjustment to the handrail that was crooked and explained that black epoxy was used with a swirl nozzle that automatically mixes the epoxy at the proper ratios. The respondent stated, this is not the way the repair was left and never uses any material of this type to fill holes. During this compliance jobsite inspection the respondent without comment to the complainant or investigator, made an attempt to clean, sand and paint the area in question but then realized he had no epoxy onsite to make the repair at that time correctly, leaving the area in question unfinished per industry standards. The respondent offered to come back another day and replace the filler material in the screw hole with epoxy and paint the entire top of the wooden handrail as a good faith gesture but the complainant declined the offer. After this compliance jobsite inspection the respondent provided multiple emails and photos with a time and date stamp showing when the repairs were made between the approximate hours of 2:08 pm and 4:03 pm on July 26, 2022. Some of the photos and video provided are blurry. Based on the additional photos and video provided 8-12-2022 by the respondent, it appears the area in question was in a finished condition. However, I am unable to determine who may have applied the unknown material or when. At the conclusion of this compliance jobsite inspection the area in question remains unfinished to industry standards.

The respondent is not in compliance with the directive due to collateral damage.

Compliant Item 3: Hand Rails already broken-breaking apart where it was pieced together with filler

Investigator’s Observation: The respondent corrected the handrail where filler was falling out at the handrail joint. The respondent is in compliance with the directive.

All errors in original.

Because Complainant would not allow Respondent a further opportunity to complete the repair to the alleged collateral damage, and instead wanted to proceed to an administrative hearing, Investigator Fagerburg forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Fagerburg testified consistently with the findings contained in his Jobsite Inspection notes, the Written Directive, and the Compliance Inspection notes. Investigator Fagerburg testified that when Respondent observed the sticky material at the Compliance Inspection, Respondent indicated that the material was not the epoxy material used by Respondent. Investigator Fagerburg testified that the material was not epoxy and that it looked like “putty or roof sealant.” Respondent attempted to clean the area at the Compliance Inspection and offered to return to paint the repair, including the entire handrail. Complainant refused the offer. Investigator Fagerburg opined that the entire repair would have taken Respondent less than an hour to complete.

Investigator Fagerburg testified that the current issue is not a Complaint issue, however, it is “minor” collateral damage that occurred during the corrective work. However, Investigator Fagerburg also testified that other trades were present at both the Jobsite and Compliance inspections with multiple workers hauling material, including tile, and utilizing the stairs, and that it is possible that one or more of the other trades could have caused the damage.

Investigator Fagerburg conducted a prehearing inspection on November 21, 2022, by which time Complainant had the entire wood handrail that had been installed by Respondent replaced with a metal handrail. Investigator Fagerburg testified that the handrail installed by Respondent was structurally sound, that replacing it was not warranted, and that replacement was Complainant’s preference. Complainant had actually shown Investigator Fagerburg an estimate for a metal handrail during the Jobsite Inspection.

Investigator Fagerburg testified that Respondent’s contract was lacking the advisement regarding a homeowner’s right to file a written complaint with the Registrar.

Complainant testified that she filed the Complaint because of “how [Respondent] spoke to her” and did not want Respondent to return to perform the minor repair “because of bad energy.” Complainant further testified that July 26, 2022, was the “first real opportunity” for Respondent to perform the corrective work pursuant to the Written Directive due to her work schedule and a medical appointment, and that Respondent “could have come back the next day” as it was the last day of the Written Directive. Complainant testified that she asked the other trades to “stay out of [Respondent’s] way.”

Complainant testified that she “felt [the handrail] was not safe due to the modification” and that she was “shocked” that there was a “block of wood balancing the handrail.”

Behdad Reymondo Lilabi, Respondent’s owner, testified that he advised Complainant to cover the railing to protect it from the other trades, and notwithstanding such, when he arrived to perform the corrective work, the railing was uncovered. Mr. Lilabi further testified that while he was performing corrective work, workers were carrying doors up and down the stairs. Mr. Lilabi also testified that he was “shocked” to find “goo” on the handrail at the Compliance Inspection, and that he told Complainant it would take him “ten minutes to fix it.” Mr. Lilabi asked Complainant to give him some time to get the epoxy and allow him to return. Mr. Lilabi testified that Complainant shook her head, “no” and would not allow him to return to complete the repair. Instead, Complainant stated, “Let’s go to hearing.”

Mr. Lilabi testified that Complainant had wanted a black metal railing from the outset, however, he had told her that Respondent does not install metal railings because he is not a welder. Complainant chose to contract with Respondent for the installation of a black wood railing. Mr. Lilabi asserted that Complainant experienced “buyer’s remorse” and that is why she pursued this Complaint.

Mr. Lilabi testified that he has modified his contracts and invoices so as to be in compliance with the Registrar’s requirements.

Administrative notice is taken of Respondent’s prior License record on December 14, 2022. Such prior License record reflects that Respondent’s License No. 325044 was first issued on June 29, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplined complaints, and zero resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s initial work was not in conformity with the Registrar’s standards. However, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Respondent performed the necessary remedial work in this case. However, Complainant alleged that Respondent caused collateral damage while doing so. Although Respondent did not believe that it had caused any such damage, Respondent offered to and began to perform corrective work to that area, however, could not complete the work due to not having the requisite materials at that time. Complainant refused to allow Respondent any opportunity to return. Moreover, Complainant did not establish that Respondent was even responsible for that “damage” as Complainant did not protect the railing from other trades, and there were other trades present utilizing the staircase and hauling heavy and bulky materials while doing so. Further, Complainant replaced the wood handrail with a metal handrail, which appears to be the product she wanted in the first instance, yet she decided to contract with Respondent for the installation of a wood handrail. Therefore, the Administrative Law Judge concludes that Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract documents at the time Investigator Fagerburg viewed them, did not contain all nine required elements for contracts. However, Respondent asserted at hearing that those documents are now in compliance. Therefore, at least initially, Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent completed the corrective work following the Written Directive being issued, however, Complainant claimed resultant collateral damage. For the reasons set forth above, Complainant failed to establish that Respondent was actually responsible for the collateral damage. Therefore, Complainant failed to established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that no discipline be imposed against Respondent’s license, and that the Citation issued in Case Number 2022A-04298, together with the Complaint upon which it is based, be dismissed, if on or before thirty (30) days after the effective date of the final order, Respondent provides a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

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001

-137160-45720000Done this day, December 15, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

[email redacted]

Teresa Lynn Humphreys

[email redacted]

David Fagerburg

[email redacted]

RNBL, LLC

DBA: Stairs 4 Less

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000